Although the Army Corps of Engineers has waived any regulatory jurisdiction over the proposed mines, fortunately the federal government can bring powerful tools to the fight. In January, the regional director for the U.S. Fish and Wildlife Service, which manages the preserve, warned the Georgia EPD that permitting decisions would need to consider “federally reserved water rights.”
Credit: Handout
Credit: Handout
These rights are created whenever the United States decides to protect federal land for purposes that require water. The Supreme Court developed this doctrine in 1908 in a case involving land set aside for American Indian tribes in Montana. In its 1963 and 1976 decisions, the court held that reserved water rights are also created when the United States establishes national wildlife refuges, parks, monuments, and other protected areas of federal land that require water. It revealed that. These and numerous lower court decisions leave no doubt that this principle applies not only to surface water but also to groundwater, limiting a state’s ability to authorize uses of water inconsistent with such existing rights. I haven’t left anything behind.
In the eastern part of the country, water conflicts tend to be far less common than in the arid western part, so the principle of reservation of rights is rarely invoked. However, as the Reagan administration’s Office of General Counsel concluded in a comprehensive legal opinion in 1982, this principle applies to federal lands acquired by the United States to fulfill federal purposes that require water. . This includes the Okefenokee National Wildlife Refuge, whose land was purchased by the United States in the 1930s for the specific purpose of protecting habitat for migratory birds and other wildlife.
In addition to protecting valuable landscapes, applying the reserved water rights principle here also allows for protection of federal lands in need of water as climate change continues to alter the water cycle nearly everywhere. It will emphasize what needs to be done. Indeed, one of the concerns at Okefenokee is that the hydrological disruption caused by mining is likely to exacerbate the risk of catastrophic fires both inside and outside the refuge, a risk that is likely to worsen as the climate changes. It will only increase as it stabilizes.
Indeed, reliance on the doctrine of reserved water rights has sometimes led to conflicts. But it also led to many success stories. In fact, in many places in arid states such as Utah, Montana, and Colorado, federal-state negotiations allow for permanent access to threatened federal lands without unreasonably interfering with the exercise of water rights under state law. We have succeeded in providing protection.
If the state EPD ignores the Okefenokee National Wildlife Refuge’s water needs and allows Twin Pines to be built, the United States should be prepared to sue in federal court to enforce its reserved water rights. It is. As Clinton-era Secretary of the Interior Bruce Babbitt said in the 1990s in opposition to DuPont’s mining plans, “Titanium is a common mineral, and Okefenokee is a very unusual swamp.”
That’s still the case today. The U.S. Department of Justice may have to act soon to protect Okefenokee.
John D. Lecy served as General Counsel (General Counsel) for the Department of the Interior from 1993 to 2001. He is co-author of a textbook on water law, currently in its sixth edition, and recently published a comprehensive political history of America’s public lands. common ground. ” He is a distinguished professor emeritus at the University of California School of Law in San Francisco.
